Eccles and Cousens and Anor

FAMILY COURT OF AUSTRALIA

ECCLES & COUSENS & ANOR

[2017] FamCA 367

FAMILY LAW – CHILDREN – application by father for a change of child’s residence in circumstances where mother has been primary carer of child since separation – allegations of alcohol abuse and mental health issues affecting the mother’s capacity to care for the child – allegations of inappropriate internet use by the child in care of the mother where child being groomed by older male – orders that child live with the mother and spend time with the father in circumstances where child can elect to spend more or fewer days with the father – order for sole parental responsibility in favour of the mother – orders that child be referred to a paediatrician and child and adolescent psychologist

Family Law Act 1975 (Cth) ss 60B, 60CC

APPLICANT:

Ms Eccles

1st RESPONDENT:

Mr Cousens

2nd RESPONDENT:

Ms Cousens

INDEPENDENT CHILDREN’S LAWYER:

Laurie Robertson

FILE NUMBER:

SYC

7497

2009

DATE DELIVERED:

30 May 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

7, 8, 9 & 10 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms O'Rourke

SOLICITOR FOR THE APPLICANT:

Legal Aid Commission Newcastle

COUNSEL FOR THE 1ST RESPONDENT:

In person

SOLICITOR FOR THE 1ST RESPONDENT:

COUNSEL FOR THE 2ND RESPONDENT:

In person

SOLICITOR FOR THE 2ND RESPONDENT:
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Neville

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Laurie Robertson

Orders

All previous parenting orders in relation to B (born … 2003) (‘the child’) are discharged.
The child live with Ms Eccles (‘the mother’).
The mother have sole parental responsibility for the child.
The child shall spend time with Mr Cousens (‘the father’) for two days in the June/July 2017 school holiday period and September/October 2017 holiday period subject to the following:-
(a)such time shall be between the hours of 10.00am and 4.00pm on each of such days;
(b)
such times shall commence and end at the Family Court of Australia,

97 Goulburn Street Sydney and the hand-over shall be facilitated by a family consultant; and
(c)the time will be with the father alone on such days unless the child requests of the Independent Children’s Lawyer that she would like to meet with Ms Cousens (‘the father’s present wife’), C (‘the child’s sister’) and/or the children of Ms Cousens.
The days shall be weekdays on those reasonably nominated by the child, if any, to the Independent Children’s Lawyer at the time she explains the orders made by this Court.
The Independent Children’s Lawyer shall make contact with the father prior to that meeting and confirm with him whether he is prepared to meet the child in Sydney in accordance with the outline of this order in the absence of Ms Cousens and the other children, and if he is not prepared to do so then these times will not occur.
If the child wishes to spend more or less time or have more or fewer days with the father then that will be a matter for the child.
The two (2) day periods in each school holiday will be consecutive days, unless otherwise requested by the child.
The father is to provide to the Independent Children’s Lawyer within seven (7) days of the final orders being made a mobile telephone number on which he can be reached and the Independent Children’s Lawyer is to provide that number to the child upon receipt.
The father is at liberty to send letters, cards and gifts to the child at the mother’s residential address.
The mother shall ensure that the child receives any such communication and/or present received from the father.
Within twenty one (21) days of the date of these orders, the mother is to do all acts and things necessary to obtain:-
(a)a referral for the child to a paediatrician and thereafter make an appointment with the paediatrician at the earliest opportunity and follow through with any recommendations of that paediatrician;
(b)a referral for the child to an Ear Nose and Throat Specialist and thereafter make an appointment with the Ear Nose and Throat Specialist at the earliest opportunity and follow through with any recommendations of that Ear Nose and Throat Specialist;
(c)a General Practitioner Mental Health Plan for the child; and
(d)a referral for the child to a child and adolescent psychologist and ensure that the child attends upon the child and family psychologist until such time that the child and family psychologist discharges the child from further attendance. The first meeting shall be as soon as practicable and at least on or before 16 June 2017 and the psychologist shall be provided with a copy of these orders, the Family Reports of 2017 and 2011 and a copy of these orders.
The mother shall within twenty eight (28) days of the date of these orders confirm compliance with the obligations as outlined at paragraph 12(a)-(d) inclusive to the Independent Children’s Lawyer.
The mother is hereby authorised to provide to any child psychologist with whom the child is engaged a copy of:-
(a)these orders;
(b)the judgment of the Court upon which these reasons are based; and
(c)a copy of the Family Reports dated January 2017 and March 2011.
The mother is to do all acts and things necessary to facilitate the child’s attendance upon the Independent Children’s Lawyer for the purpose of having the orders explained to her within fourteen (14) days of the date of this order, have the orders explained to her.
The mother is to ensure that the child attends school each day unless there is a medical certificate relating to the child permitting her non- attendance at school.
The mother shall co-operate with the child’s treating psychologist and the Welfare Teacher [or such other staff member as nominated] from G School in implementing strategies for the child’s attendance at school and related matters.
Within six (6) months of the date of these orders, the mother is to contact Relationships Australia or such services as identified by the Family Consultant and obtain a referral to a parenting course in relation to parenting adolescent children and attend a course in relation to social media and internet usage for adolescent children and is to commence such courses. The mother shall complete such course within twelve (12) months of the date of these orders.
The mother shall continue to attend upon her own counsellor and is to comply with her counsellor’s recommendations as to the frequency and duration of any course of counselling.
The mother shall within seven (7) days of the date of this order provide to the father and the Independent Children’s Lawyer correct details of:-
(a)her and the child’s mobile telephone numbers;
(b)her email address; and
(c)her and the child’s residential address/es
The mother shall do all acts and things and sign all documents as may be required to authorise the child’s school to provide to the father school reports and all other documents and circulars which in the normal course will be provided to the parent.
The mother shall inform the father by email, as soon as is practicable, in the event that the child is hospitalised or diagnosed with any significant health concern including the decision, if it occurs, for the child’s tonsils to be removed.
The mother and father shall each keep the other informed of any change of any such contact details within two (2) days of any date of any such change.
The father shall within seven (7) days of the date of this order provide to the mother and Independent Children’s Lawyer correct details of:-
(a)his postal address;
(b)mobile telephone number; and
(c)his email address for himself and for the children of Ms Cousens,
The Independent Children’s Lawyer shall:-
(a)within twenty one (21) days confirm the parties’ email addresses by emailing each parent and each of the parents shall acknowledge receipt of such email to the other party and the Independent Children’s Lawyer within a period of two (2) days after the sending of such email; and
(b)the Independent Children’s Lawyer shall meet with the child for the purpose of arranging or seeking confirmation as to the time for the child to spend time with the father, if the father is willing to confirm he will attend, to see the child.
The Independent Children’s Lawyer’s appointment is discharged on 6 October 2017 or such other time as is ordered by this court.
The mother, father and Ms Cousens are restrained from writing or making any derogatory comments to the child or in the child’s presence or hearing (including through social media or electronic communication or written communication) in respect of the mother, father, Ms Cousens, members of the maternal family and/or paternal family.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All extant applications, other than costs, be and are dismissed.
Any application as to costs to be made in accordance with the Family Law Rules 2004 (Cth).
At the expiry of any appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eccles & Cousens and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7497 of 2009

Ms Eccles

Applicant

And

Mr Cousens and Ms Cousens

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

B (‘the child’) is aged 13 almost 14 and has been the subject of proceedings one way or another since just after her first birthday.
The first parenting dispute was contained in 2004 and 2005. It led to consent orders being made on 25 February 2005. These orders provided that the child lives with Ms Eccles (‘the mother’) and that Mr Cousens (‘the father’) have regular time and liberal telephone contact with her.[1]
[1] Copy order attached to the affidavit of the father sworn 2 March 2017 (‘the father’s trial affidavit’) page 27.
This settlement did not lead to a parenting partnership. The parental conflict festered and proceedings re-commenced in 2009. An Independent Children’s Lawyer was appointed and the fight worked its way through the then Federal Magistrates Court. It took two years to reach a hearing.
Consent orders were made on 4 November 2011.[2] These orders relevantly provided:-
a)the mother have sole parental responsibility for the child provided the mother consult with the father;
b)the child live with the mother;
c)the child spend time with the father, who by that time had moved to Brisbane, and the father meet the costs of air travel; and
d)the father had access to medical records and school records of the child.
[2] Affidavit of mother filed 10 February 2017 (‘the mother’s trial affidavit’) page 20.
When the child spent time with the father in January 2013 in Brisbane, she was not returned by him at the end of that holiday time. He enrolled her in a local school and limited her contact with the mother.
The proceedings were re-commenced by the mother in February 2013 with a successful interim application for the child’s return to the mother. Again an Independent Children’s Lawyer was appointed.
Since February 2013 these proceedings have then taken four and a half years to be determined.
There is and should be severe criticism of both these parents. They have subjected the child to their conflict. This little girl has, for the whole of her life, seen and been exposed to the hate, anger, dislike and disrespect of the parents to each other. These parents continue to inflict their conflict on her and there is no sign of any respite. Consequently, they have forced this child to endure the ongoing misery over the years of litigation.
For the purpose of preparing for the aborted trial in 2005, the aborted trial in 2011, the aborted trial in 2014 and the 2017 trial this child has been psychologically and emotionally examined, poked and prodded; not because of her mental health but as a result of her parents’ conflict. Both parents should be ashamed of themselves.

The parties’ respective cases and the issues

It was the mother’s case that she should have sole parental responsibility for the child, the child should live with her and should only see and communicate with the father at times determined by the child. She sought further other orders in that regard.[3]
[3] Exhibit M1 – mother’s case outline setting out orders she sought.
The father sought orders that the child live with him and the father’s wife, and that she spend time with the mother.
In January 2014 the Federal Circuit Court made an order joining the father’s current wife (‘the father’s wife’) as a party. She and the father represented themselves and jointly presented their case. She and the father did not clearly set out the orders that they sought in their case outline.[4]
[4] The father’s case outline – Exhibit R1.
As best as I could determine the father and his wife seek orders that:-
a)they have sole parental responsibility for the child and they will consult with the mother with regard to major decisions regarding the child’s welfare;
b)the child live with them:
c)if she is not listed as being at Risk of Significant Harm with state child welfare authorities, the child spend time with the mother every fourth weekend during school terms from Friday evening until Sunday evening, particularly over the significant days such as Mother’s Day, plus half the Queensland school holidays with Christmas and Easter being alternated between the parents;
d)there be weekly Skype calls between the child and the mother each Wednesday evening;
e)the cost of travel be shared between the parents;
f)the mother be restrained from alcohol use when the child is in her care;
g)the mother seek referral to a mental health centre;
h)use of the internet by the child be supervised;
i)a Recovery Order be put in place if the child is not returned to the father and his wife after spending time with the mother, and the child’s name be placed on the Airport Watch List.
At the conclusion of the hearing the Independent Children’s Lawyer submitted that the child should primarily live with the mother, the mother should have sole parental responsibility and the child should only spend time with the father if that was her wish. The precise orders were set out in a minute of order,[5] saying:-
[5] Exhibit ICL 7.
a)the child live with the mother;
b)the mother have sole parental responsibility the child;
c)the child shall spend time the father as may be agreed between the parties but subject to the child’s wishes;
d)provision of telephone numbers;
e)liberty for the father to send letters, cards gifts etc.;
f)the child be referred to a paediatrician, an ear nose and throat medical specialist and a general medical practitioner for some health issues;
g)the mother ensures that the child attends school and assists the child’s psychologist and teachers to facilitate such attendance;
h)the mother complete a parenting course;
i)the mother continue to seek treatment from her health care professionals;
j)the parents be restrained from making derogatory comments about the other parent or their family in the presence of the child; and
k)the Independent Children’s Lawyer explain the orders to the child.
The mother adopted the approach submitted by the Independent Children's Lawyer.
The issues were:-
(a)whether the child should remain in the primary care of the mother given the father and the father’s wife’s concerns about the child’s admitted regular absenteeism from school;
(b)an assertion that the child was at risk of sexual abuse because of her alleged uncontained activities on social media and the like in the mother’s care; and
(c)the mother’s interaction with doctors, including ‘doctor shopping’.
The father’s case was that the mother was unable to properly care for the child.
The father had not seen the child for about two and a half years. The mother claimed the father had chosen that course. The father asserted that it was up to the mother to arrange communication and to inform him.
The father and his wife contended that the mother had alienated the child from them and their family.

BACKGROUND

The father is aged 48, he was born in Brisbane and lived in Queensland until 2002. The father is an academic, although he is currently studying towards the completion of a doctorate. His evidence is that such course will be completed by him in about August 2017. He relies upon Centrelink family benefits and his wife’s income for his present economic support.
The mother is aged 48[6] and is in in receipt of Centrelink benefits and family tax benefits.
[6] Initiating application filed 1 February 2013.
The child was born in 2003 and lives with the mother.
The father and mother married in 2003 and separated in about 2004. The father asserted various acts of family violence against him around the time of separation. Notwithstanding the allegations of family violence the parties entered into consent parenting orders in the Family Court on 25 February 2005, to which I have earlier alluded.
The father asserted that the mother had alcohol difficulties which would impact upon her parenting. There was no current evidence of the mother having alcohol difficulties, at least since November 2011.
The father and his wife have been in a long term relationship since 2008. They married in 2010. There are two children of their marriage; F, who sadly passed away in 2010, and their daughter C who was born in 2012.
The father’s wife has four other children: Mr E aged 21 who lives independently, “D” aged 18, “T” aged 13 and “E-R” aged 12. The younger three of her children live with the father and his wife in South Eastern Queensland.
With the assistance of an Independent Children’s Lawyer, the father (who was acting for himself) and the mother (who was represented by the Legal Aid Commission) entered into the consent orders in the then Federal Magistrates Court on 4 November 2011. As I earlier, these orders provided that the mother have sole parental responsibility and the child live with her. In addition they provided that the child spend time with the father in Brisbane on some weekends, provided notice was given, and during school holiday periods.
The communication between the father and the mother continued to be poor and problems continued. In October 2012 the child was not returned to the mother after a holiday break on the basis, as alleged by the father, that they did not have a working mobile phone number for the mother. The child was eventually put on a flight a few days later.

There were more difficulties in relation to the December 2012 time and the child eventually caught a flight to see the father on 4 January 2013. I accept that these changes in time would have imposed significant financial hardship upon the father and the father’s wife.
In January 2013 the father asserts that after he received the child’s report card and saw deteriorating school attendance he held the child over. Rather than return the child after four weeks in accordance with the arrangements, he enrolled the child with the H School in I Town, South East Queensland where she attended school from 29 January 2013 to 11 February 2013.
On 1 February 2013 the mother filed an application in a case seeking a recovery order. The child was due to return to the mother well before school commenced.
The mother asserts that the father and the father’s wife did not allow the child to contact the mother over the six week period she was in Queensland. The father claimed that it was the responsibility of the mother to telephone at the time in accordance with the orders of November 2011. I accept the mother’s evidence that no calls were made to her.
On 8 February 2013 an order was made requiring the child to be returned to the mother and she was returned by a flight the following day.
On 19 December 2013 the child travelled to Brisbane to spend school holidays with the father. During that time the father found that the child was communicating with a man called ‘Mr J’. This had been occurring on her school email account and at times when she was in the care of the mother. There were three communications between Mr J and the child whilst in the father’s care on 23 and 27 December 2013.
The father took the child to Queensland Police and made enquiries of the Department of Education. The father did not inform the mother of that circumstance. His excuse was that he was advised by the police in that regard. I do not accept that excuse offered by him and the father’s wife given the need to protect the child from the apparent grooming by a stranger on line.
In January 2014 an interim order was made joining the father’s wife as a party to the proceedings and provided for some amendments to the November 2011 orders. Those included that if the child was unable to travel to Brisbane to spend time with the father then the mother would arrange alternative travel at her own expense. Order 15 of orders made 4 November 2011 were discharged. Orders were made in relation to the child attending general medical practitioners other than at the Suburb K Medical Centre.
The mother was directed to provide authorities to the Suburb K Medical Centre to enable the father to speak to that centre and order 5 of orders made 4 November 2011 were varied to make it clearer.
The father’s contravention applications were withdrawn and dismissed.
In February 2014 the child had email communication with T which brought about concerns by the father. He contacted New South Wales Police who attended at the mother’s home to check on the welfare of the child.
In March 2014 the child was to travel to Brisbane, however, a bag was allegedly left at a bus stop and the mother requested that the father put her on a later flight. Given the difficulties of changing inexpensive flights the child then did not travel to spend time with the father until April 2014.
In May 2014 the mother attended the child’s school and discovered the misuse of the internet by the child. The mother informed the father of that circumstance and the father replied informing that he was aware of the misuse.
In late August 2014 the child’s mother cancelled a trip to Brisbane and the following day the New South Wales Department of Child Services attended at her home undertaking a welfare check in relation to the child.
The child travelled to Brisbane and spent time with the father’s family in October 2014. That was the last time that the child has spent time with the father or his family.
It is an agreed fact that sometime towards the middle of 2015 the father travelled to Sydney on a conference for three days and made no arrangements to see the child. The father has not been in any form of direct communication with the child since about October 2014.
In late December 2014 the matter was transferred from the Federal Circuit Court to the Family Court and placed in the then pool of matters awaiting hearing.
The child did not travel to Queensland in December 2014 or January 2015. The mother asserts that the father requested he spend time with the child in Queensland. She agreed, but flights were not organised.
On 30 August 2016 the matter was listed before a justice of the Family Court for listing for final hearing in the rolling list commencing 27 February 2017. Directions were made for a family report and the filing of affidavits.
The Family Consultant arranged for the meetings to take place in Sydney on 24 October 2016. On that date or shortly before that date an email was sent to the family reporter by the father indicating that neither he nor the father’s wife would participate in that process.
The Family Consultant said that:-
2.This family report is limited because [the father] and [the father’s wife] did not attend the family report interviews on 24 October 2016 and, therefore, their views are unknown and have been unable to be assessed for this report. The writer was informed by Child Dispute Services on the morning of 24 October 2016 that [the father] and [the father’s wife] had just been sent an email reiterating that they were required to attend the interviews. They did not attend or respond. An email written by [the father] and [the father’s wife] on the day of 24 October 2016 was subsequently provided to the writer by Child Dispute Services just prior to the writing of this report. In the email, which had a number of attachments, [the father] and [the father’s wife] wrote that they had concerns about [the child] being interviewed for the family report. They raised other concerns about [the child], specifically her alleged engagement in sexualised behaviour and allegedly being at risk of sexual abuse while in [the mother’s] care. No attachments to this email were read by the writer.
I am satisfied that the father and the father’s wife knew about the appointment and chose not to participate.
The mother filed her affidavit material on 10 February 2017. The father and the father’s wife filed their material on 2 March 2017.
In this hearing the father and the father’s wife were unrepresented. While they are both highly educated the difficulties in undertaking that task cannot be underestimated. I have had regard to that circumstance when considering the evidence and its application to the law in the determination process I undertook.
In these proceedings any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the fact.

EVIDENCE

Each of the parties filed a case summary which was tendered in evidence.[7] These were evidence of the parties contentions, not of the facts asserted in the various summaries.
[7] Exhibits ICL1, M1 and R1.

The Independent Children’s Lawyer

In addition the Independent Children’s Lawyer tendered the following documents:-
-    Exhibit ICL2 - Family Report date 31 January 2017 (‘the January 2017 Family Report’). The Family Consultant was made available for cross-examination in relation to that report.
-    Exhibit ICL3 - Family Report 15 March 2011 (‘the March 2011 Family Report’)
-    Exhibit ICL4 - G School Absences report. This is evidence that the child was absent from school during the 2016 school year for 55 days, of which 10 days were for school business, the remainder (approximately 9 weeks) was due to sickness and the like. Numerous medical certificates were provided but they did not cover all periods of absence.
-    Exhibit ICL5 - the Child Inclusive Conference Memorandum to the Court conducted on 18 November 2014 observing the serious concerns raised by the father and the father’s wife, including concerns raised by them about the mother’s mental health and possible enmeshment with her daughter along with concerns by the mother about the father’s mental health and with the report querying whether there needs to be psychiatric evaluation.
-    Exhibit ICL6 - the father’s response to the Child Inclusive Conference Memorandum.
-    Exhibit ICL7 - the minute of order sought by the Independent Children’s Lawyer in final submissions which was wholly supported by the advocate for the mother.

The mother

The mother relied upon the documents set out in her case outline. Her minute of order became superfluous given her agreement with the orders proposed by the Independent Children’s Lawyer, although some parts of the mother’s orders have been included given discussion between the Bench and the parties at the conclusion of the hearing.
The mother also relied on her affidavit sworn 10 February 2017. The remainder of the documents relied upon by her were included in the Independent Children’s Lawyer’s tender in the form of the 2017 Family Report and the Child Inclusive Conference Memorandum to the Court of 21 November 2014.
Counsel for the mother tendered in evidence the following:-
-    Exhibit M2 - the referral to school counsellor dated19 March 2014.
-    Exhibit M3 - the email from the father and the father’s wife to the Suburb K Medical Centre records.
-    Exhibit M4 - the signed authority to L School dated 12 March 2014.
-    Exhibit M5 - Copy NSW Police records.
-    Exhibit M6 - Emails between the child and Mr M.
-    Exhibit - M7 Records from Encounters (Dr N) dated 2011, 2012 and 2013.
-    Exhibit M8 - Copy of NSW Police records at to police events.
-    Exhibit M9 - Various school reports, including 2009, 2010, 2011 and 2013.

The father and the father’s wife

The father and the father’s wife were self-represented and they tendered in evidence the following:-
-    Exhibit R1 - their case summary.
-    Exhibit R2 - three pages from Suburb K Medical Centre records.
-    Exhibit R3 – a three page document of medical records relating to 2005 in relation to the mother and her mental health issues at that time. I have given that evidence little weight given that it is more than a decade old and neither party sought to have psychiatric evidence adduced as suggested in the Child Inclusive Conference.
-    Exhibit R4 - the medical certificates in regard to the child in 2010 and pre-dated the consent orders of November 2011.
-    Exhibit R5 - the medical records of the mother in October 2012. From my reading of the document it simply evidences the conflict that was happening between the parties and the tension it was imposing upon the parties.
-    Exhibit R6 - the report from Family Community Services in November 2014 arising out of the email communication discovered between the child and an older man. I have considered that report and the whole of that material in terms of these proceedings.
-    Exhibit R7 - a report from Family and Community Services from, it appears, 2014. I have read and considered that material.

Evidence of the mother

The mother gave evidence in terms of her affidavit filed 10 February 2017. The mother seemed both flat and stressed when giving evidence. It was made it clear to her that if she needed breaks at reasonable times, she only needed to ask.
The mother said that the child attended G School last year and that the family had moved to be near that high school. The mother said that she believed that this was good school and, there is evidence from the Family Consultant that the child likes being at that school.[8] The mother wants the child to sit for her Higher School Certificate.
[8]Paragraph 30 of the January 2017 Family Report.
The child was absent from school many days in 2016. The mother has recently taken the child to see the general practitioner and he has raised questions as to whether some of the child’s sickness from 2016 may arise from tonsillitis and has recommended that she see an Ear Nose and Throat specialist. The mother has said she will do that. Given the evidence, I will order that she does do.
The mother said that at times when the child flew to and from Brisbane she had difficulties with her ears. At other times it was okay.
The mother’s evidence in relation to the child not attending school for such a significant period in 2016 was troubling. She initially tried to blame the location of the previous house, however, I am satisfied that the mother, at times, either retains the child from school or allows the child to be away from school without proper reason.
The mother was cross-examined by the Independent Children’s Lawyer in relation to the child’s anxiety.[9] The mother said the child had been absent from school from time to time and she was suffering from anxiety. The mother has discussed it with her general practitioner. The anxiety was particularly difficult in August 2016 when one of the child’s friends moved and the mother needed to catch the bus with the child so that she would walk to school. She says that that has eased in recent times.
[9] Ibid Page 18 paragraph 37.
The mother concedes that problem requires investigation and she is content for there to be an order that she arrange for the child to see a child and adolescent psychologist in that regard. Given the evidence, I will order that she does so.
As to the stress, the mother says it has been a problem for four years commencing, after the child had been held back by the father. She has tried herbal medicine and arranged for the child to see a school counsellor.
The mother said that the child has friends at school and sees them outside school. She talked about the child’s best friend, although there has not been a sleepover at this stage.
There are two other friends, although they do not sleep over.
The mother concedes that the child has limited social contact over school holidays and is not engaged in extra-curricular activities. She said the child likes reading and has an interest in dance.
One of the sad parts of the evidence of this case is that the father had telephoned the mother’s mobile telephone. The mother did not notice the call nor did she respond to it. The father in his evidence said he would not have expected the mother to respond. The mother said that she informed the child of the call. This was an opportunity for the parties to reach out to each other, but they did not do so. The mother seems to wish to interact with the father only through solicitors, at this time.
The mother says that after the October 2014 time the child was not willing to travel and that the father has not sent birthday cards, Christmas cards or any presents to the child. She said the child is not willing at this time to travel to see the father’s family in Brisbane. The mother said the child was not permitted to communicate with her at times when she was in Brisbane. The mother’s finances are such that she could not easily or effectively afford airfares to and from Brisbane. She lives in public housing and is in receipt of Centrelink benefits. The mother asserts that on one occasion when the child went to visit the father in Brisbane her telephone was confiscated.
The mother gave evidence of her and the child living in a three bedroom apartment. Until recently they have had a student with them to provide financial assistance. However, the mother does not propose to have any further students in for the time being.
An example of the difficulties in communication was set out by the mother in paragraphs 48 and 49 of her trial affidavit when the child did not make a flight. The mother could have sent a text message and could have provided more support for the child, given her anxiety.
The mother said that it was hard to deal with the father and his wife because of her perception that they believed ‘we are not good enough’. When asked if she would have invited the father to see the child if the father was in Sydney, the mother said the father would not come to Sydney and it would not happen.
The mother has no real plans in overcoming the child’s anxiety, but is open to putting in place arrangements to address that problem. Given the evidence, I will order that she does do.
In relation to the telephone call from the father the mother said it was the first call she had received for three or four years.
The mother complained in cross-examination that her personal records had been passed on to the husband and the husband’s wife.
Whilst the mother’s presentation was flat and at times unemotional she clearly knows about this child and is sensitive to her needs. She endeavoured to answer questions thoughtfully and carefully. I am satisfied that she answered the questions in a truthful way from her very polarised perspective.
I will treat her evidence with caution, although, it has not been significantly impeached.

Evidence of the father

The father gave evidence in terms of his affidavit sworn 2 March 2017. The advocate for the mother had argued that significant parts of that affidavit ought to be struck out as it related to events before the consent order of November 2011 were made.
Rather than adopt that course I indicated to the father that I would deal with that evidence on a weight basis. I have done so and I have read the evidence, but I am concerned that much of it relates to re-agitation of allegations prior to the September 2012 orders and as such was not given significant weight.
The father raised significant issues about the mother’s mental health. As I have indicated earlier in these reasons it was open for the parties or the Independent Children’s Lawyer to have mental health assessments undertaken. That did not occur and whilst I am satisfied that the mother is at times anxious and upset I do not accept the assessment of her mental health as asserted by the father and the father’s wife.
In March 2003 the father and the father’s wife wrote to the Practice Manager of the General Practitioner medical practice which cared for the mother and the child. They asserted, amongst other things, the mother had a longstanding history of alcohol abuse and mental illness which contribute to her inability to rise in the mornings and meet the child’s needs.[10]
[10] Exhibit M3.
I accept that this letter had the capacity to undermine the mother’s relationship with the child’s general practitioner and put at risk the mother’s relationship with that practitioner.
The father asserted that the mother had not complied with order 13 of 4 November 2011 which required the mother to ‘forthwith authorise [the child’s] school to provide the father all information requested by him including school reports’.
Tendered in evidence was a letter to the Principal of the school however it was dated 12 March 2014.
The father conceded that he was in touch with the Principal of the school both by telephone and through email.
When the father discovered the inappropriate emails between the child and an older person, as set out earlier, he did not let the mother know but instead informed Queensland Police who in turn, apparently, informed New South Wales Police.
The father complained that he was not kept informed as to what was going on and there needed to be further investigation. All of the police records have been the subject of a subpoena and I do not accept the veracity of the father’s complaint in that respect.
When pressed the substance of the father’s complaint was that he did not know what action would follow. The father had complained to the Education Department and to the Education Minister and then lodged a personal complaint against the detective involved. This was more about the father wanting conflict and not about addressing the underlying problem.
In terms of the father retaining the child in January 2013, he asserted this was based upon advice from Child Protection Authorities. No note or record from Child Protection was provided to support this assertion. I do not accept the father’s evidence in that respect. Even if evidence of such advice was provided, the father should have asked the Court to make such an order. He did not.

What was troubling about that event was that after the decision was made by the father and the father’s wife that the child would remain in Brisbane they had a family gathering. I am concerned that the father’s evidence of the nature of this meeting and his views of what was said are inaccurate. Many of his comments about this seem implausible or reconstructed.
The father was asked about the child contacting the mother over the six weeks the child was with the father in January/February 2013. The father prevaricated in relation to the child contacting the mother and made said he expected the mother to contact the child through him. He was questioned as to whether the child ever asked about her mother over that about six week period. The father said he did not recall. Given the evidence of the relationship between the child and the mother, that response is inherently implausible.
In retaining the child in 2013 the father took this unilateral action, as he had on at least one other occasion, when it was open for him to make an urgent application and he chose not to do so.
The father was cross-examined about child support. He is currently studying towards his doctoral degree having previously been an academic. He has undertaken some very modest amounts of casual work but essentially asserts that he has earned anywhere between $700 and $3,000 per year in the last few years.
When asked if he had made any contribution to the child’s maintenance since 2013 he dissembled and said that her mother had not been in paid employment for 14 years. The father has not provided financial support for the child for some years.
The father has not provided emotional support for the child since late 2014. He conceded he had sent no birthday cards, Christmas cards or birthday presents. The father was asked about seeing the child on a one to one basis and he obfuscated in relation to this answer. In later cross-examination of the Family Consultant it was clear that the father was looking for ways for that the time be spent with his entire family and not simply with him. It is clear the father will only see the child on his terms, with all of his present family and not ‘one to one’.
The father was asked if he had the mother’s telephone number and he said no, although he had telephoned her as recently as a few weeks before the final hearing. He has made no request to see the child since at least December 2014.
In relation to the internet issue the father was cross-examined about the child spending time with him in April 2014. He took the child to a police station but did not tell the mother of that incident until it was contained in his affidavit of March 2017. He had downloaded all of the child’s emails (appropriately in the circumstances) but did not inform the mother. There is no evidence of the assertion that he made regarding the police informing him or requesting him not to tell the mother. The intelligence log summary of the police was tendered.[11] The Queensland Police observed:-
… Comprehensive review of email correspondence … provide nil evidence for further police action.
[11] Exhibit M5.
The emails were tendered[12] and showed a series of emails between December 2013 and March 2014.
[12] Exhibit M6.
The father was cross-examined as to whether the mother was wholly responsible for the child’s internet use and he said ‘yes’. This is a somewhat fixed view given that the child was with him for some of the time with regard to the internet use.
As to the child’s anxiety, the father has not observed anxiety in the child. That is also troubling given the events of January/February 2013. The father was cross-examined about the child’s anxiety and the impact of conflict, he minimised his responsibility in that respect.
When giving evidence the father declined to provide his address to the Court as he was concerned that the mother or someone on her behalf may cause interference to him or his family. He did not seek this in the final orders that were made in 2011 and he has been living at the same house since 2010. This is the house where the child had resided when she was visiting him up to October 2014.
The father’s house has adequate bedroom spaces and I am satisfied is adequate for the purpose of caring for the child if I make that order.
The father was cross-examined as to the complaints the child made to the Family Consultant.[13] He did not accept that they were in any way valid complaints. In relation to the showering he said there were rules in the house and that the child would need to comply with the rules.
[13] January 2017 Family Report paragraph 34.
The father was cross-examined as to why he did not attend at the meeting with the Family Consultant in October 2016. At the time that the matter came over for call-over for the February/March 2017 rolling list the father was represented and orders were made for a family report. The father said he did not want the child interviewed and he gave a series of implausible explanations.
It was troubling that if the father felt that strongly about the child being interviewed that he did not inform the Independent Children’s Lawyer, the Family Consultant or someone else well in advance of the meeting. Given the evidence of the father and observing him giving evidence and observing the evidence of the father’s wife I am satisfied that he and the father’s wife made a positive decision not to engage with the Family Consultant.
It is not clear why that was the case. It may well have been experiences in previous family reports. What was troubling was that he did not let anyone know and the child was left to attend that meeting without advance warning that the father would not be there.
The child has never lived on a full time basis with the father and the longest period she spent with him was the six weeks in January 2013. He knows little about this child and has not seen her for quite some period, and seems to discount the views of the child set out in the Family Report.
The father gave evidence of his and the father’s wife financial circumstances given his study commitments. That is likely to change in five months’ time when he completes his PhD.
He said he seeks orders that the child live with him and that he have parental responsibility. This despite the fact that he has not been in contact with the mother by telephone for many years.
As to the father’s evidence I am concerned that it is, in many ways, self-serving. I do not wholly dismiss it but I treat it with a great deal of caution given his, at times, inflexible attitude and yet at other times displaying his deep love and affection for this child in a moving way.

Evidence of the father’s wife

The father’s wife gave evidence in terms of her affidavit sworn 2 March 2017.
She is a qualified health professional.
The father’s wife became a member of the household in 2008 and blended the families.
Her evidence in relation to the child’s telephone calls with the mother whilst in their care was troubling as it seemed to be her expectations that the mother initiate the call to the father.
The father’s wife exhibits strong views. She has made complaints about the mother’s legal aid lawyers to the Legal Services Commission. She also made a complaint about the Child Inclusive Conference Memorandum. She was cross-examined by the advocate for the mother in terms of the observations of Ms O in the March 2011 Family Report.
The father’s wife said that the time she spent in interview was only about ten minutes. Further, she complained that the child was not introduced to them or brought to them earlier in the day for lunch. She denied that she has negative views of the mother and responded that her view was that the mother had mental health issues.
Throughout her cross-examination she was non-responsive, argumentative and at times confrontational. This was particularly apparent when she was cross-examined about not attending the appointments for the Family Consultant in October 2016. Her answers became a diatribe on the process and previous history. She effectively declined to respond.
The father’s wife asserts that the child has been alienated from the father and his present family for many years. Given the evidence of the Family Consultants I do not accept that assertion.
Strangely when cross-examined as to the impact of the orders of November 2011 the father’s wife asserted that it was wholly changed by the orders of 30 January 2014. This is an intelligent woman who has tertiary qualifications. I do not accept her view in relation to that, and I am satisfied that she dissembled in respect of that for the purposes of this hearing.
She effectively refused to answer questions in respect of the father not organising flights for the child since January 2015.
There was cross-examination of the father’s wife in relation to a record of the Suburb K Medical Centre which talks about a telephone call from the child’s ‘stepmother’ regarding the medical status of the child in terms of court documents and allegations about ‘doctor shopping’.
The father’s wife denied making that call yet that telephone call was in similar vein to the letter which I am satisfied was sent by the father and the father’s wife to the medical centre on 25 March 2013.[14] I am troubled by her answers in that respect and her endeavours to deflect questions into other areas. I do not believe her evidence in this respect was reliable.
[14] Exhibit M3.
After the child left the care of the father in February 2013 there was a peculiar email sent[15] by the child to a child of similar age in the father’s household. Instead of ringing or contacting the mother it was conceded they contacted the police to do a welfare check. This was a childish email and ought to have been resolved by the parents talking to each other.
[15] Paragraph 66 of the father’s wife’s affidavit sworn 2 March 2017 and annexure Q (page 116 of 127)
When asked about whether she accepted any responsibility for the conflict between the parents, this witness dissembled. Sadly, instead of being an agent towards solution she is part of the problem which confronts this child.
The Independent Children’s Lawyer cross-examined the father’s wife in relation to the referrals that were made in relation to the child, the internet use and the broader allegations of possible sexualised behaviour. They contacted the police in New South Wales and Queensland and the Department of Education and all those looked at the issue.
I am satisfied that they pursued every avenue reasonably available but did not contact the mother. There was contact made to child protection authorities. The risks identified by this witness were:-
1.The internet operation and the alleged sexualised behaviour;
2.School absences of which there were some significant foundation; and
3.Alienation or failure to promote the relationship between the father and the child.
In relation to the later complaint, the father’s wife asserted she did not believe it was deliberate. She asserted that there was no negativity towards the mother in the presence of the child.
After the child had been retained in January 2013 there was the family gathering, to which I have referred earlier in terms of the father’s evidence. When questioned about this meeting, the father’s wife dissembled in her answers.
In the event that the child was moved to live with the father, I am satisfied that, despite their financial resources, on the evidence of the father’s wife that they would likely comply with such order to send the child to Sydney to visit the mother.
A Christmas present was purchased for the child for Christmas 2016. The child has not been given that present and this witness was non-responsive as to why those presents were not brought or sent down for the child and the presents remain in Brisbane. That seems more about the adults rather than the child.
When asked about the anxiety of the child if she resided with them and left the mother, no real answer was given.
As I have indicated earlier this witness is not impressive. She is confrontational, argumentative, dissembles, prevaricates and at times simply declines to answer the questions, instead making long comments about other areas which are non-responsive.
She sees little damage in the conflict in which the father and she have significantly participated in, as was the case with the mother.

Evidence of the Family Consultant

Ms P is the Family Consultant who prepared the 31 January 2017 Family Report. Attached to her report was her curriculum vitae; no challenges were made to her qualifications.
Prior to giving evidence she had read the affidavit of the father, the father’s wife and the mother. At the request of the Court she had read the March 2011 Family Report.
She was aware that the child had a history of absenteeism, including 45 days in the preceding year.
The Family Consultant observed that given the father and the father’s wife’s refusal to participate in the interview process, it was difficult to make recommendations. She observed the child presented as well cared for, well-spoken and having a close relationship with her mother. From enquiries made of the school she is progressing well at high school and the child is proud of her school and finds the school a positive in her life.
The child struggles with anxiety as noted by enquiries made by the school.
As to the child’s views, the Family Consultant observed:-
45.[the child] presented as being very resistant to spending time with her father. She has not spent time with, nor communicated, with him for approximately two years and two months, which is a significant time for any young person. While stating that she does not want to see her father, she also appeared to be not entirely closed off to the idea of seeing him “if made to” do so, indicating that, if her parents could put practical, non-burdensome arrangements in place, at least for a few months, [the child] may be encouraged to re-commence spending time with her father. Significant obstacles to [the child] doing so may be the impact of [Ms Eccles’] anxiety if it involved [the child] going to Queensland plus [the child]’s views that she does not want to travel to Queensland to spend time with her father.
46.Due to [the child]’s age and stage of development, and taking into account the geographic distance and cost of travel, [the child’s] stated reluctance would have to be given weight. While the writer has not spoken with [the father] and his wife and therefore does not know his current views, a possible more workable option might be [the child] spending time with her father in Sydney to get to know him again although it is noted that [the child] is far from enthusiastic about that option.
Her views did not change given the affidavit material and other material she has read subsequent to the report being prepared.
The Family Consultant would like to see a plan put in place to meet the child’s needs regarding anxiety. Further, she would like to see steps taken to reduce the child’s absenteeism and believes that this should be of significant interest to the school.
She said, and I accept, that 45 days’ absence is a risk factor.
Her view was that the health issues, particularly tonsillitis, needs to be addressed and that she ought to see an Ear Nose and Throat specialist.
In terms of her general health, she should see a paediatrician in relation to her anxiety and she should see a child and adolescent psychologist.
The Family Consultant said that if the Court determined that the child was to move to Queensland it would create a whole new set of worries and anxieties. She said that there could be significant and fundamental damage to the child in those circumstances.
The child has not seen the father for two and a half years that has allowed anxiety to be built. The Family Consultant said the child does not wish to be forced to travel and it would be most important that any new relationship is initially built in Sydney.
In her report the Family Consultant noted:-
32.[The child] described what she considered to be difficult issues with her father including: her father not believing things that she had said, such as whether she had had a shower or not and his making her have another one even though she had said that she had; that she was often hungry and she and the other children were given insufficient food for dinner; that she did not get along with [the father’s wife] and that her father and [the father’s wife] both “got drunk a lot” and would fight, which she did not like, and that, at these times, the children would be responsible for [her baby sister] including, on one occasion, putting her to bed. She also described hearing her father and step-mother speaking negatively about her mother and said that she was uncomfortable hearing these comments. [The child] described an incident which, she said, occurred when she last spent time with her father, and said that both her father and [the father’s wife] were drunk and that [the father’s wife] put them (the children including her) in the car and drove around for a “long time” and eventually drove them home. She said that she felt scared at the time. [The child] added that she was always polite to her father and [the father’s wife] despite these incidents.
The Family Consultant said that the showering may be a communication issue. The hunger could be a worry, but the real problem is the child’s complaints about the father and the father’s wife’s drinking and also driving a car.
The child does not now know her father well. She had a good relationship with him while contact occurred and there was a sense that she could not understand why the contact stopped.
These proceedings no doubt added to the anxiety, particularly as they had been on foot for so long.
The Family Consultant was cross-examined as to the enmeshment between the child and the mother. As to the child she said a counsellor would be protective of that although the enmeshment may be more on the mother’s part than the child as the child was prepared to argue with the mother.
The Family Consultant said that if the child did move to Queensland there would be a loss of a relationship and would experience that significant loss. She would also leave the school which is a protective device for her. It would be sad for her and would impact on her adolescence and identity.
The Family Consultant thought that in her view the child had not been alienated from the family. She has good memories of the father and the happy times she had with him. I accept the evidence that it is unlikely that the mother has alienated the child from the father.
I do accept, however, that the poor communication and conflict and animosity between the family has added to the conflict which impacts upon the child.
On cross-examination from the father the Family Consultant agreed that the absenteeism seems to be a long standing problem, but now that the child is older she has been at a school where it is likely that the impact on her education could be adversely affected.
She said she does not believe that a change of residence would be supported by the child given the anxiety issues. In her report the Family Consultant observed a positive comments about the child and her relationships and in that regard I note paragraphs 29 to 33 of the 2107 Family Report.
This was information provided by the Family Consultant through contact with the school.[16]
[16] Family report January 2017 paragraphs 36 to 39.
It seems that despite the absenteeism this child is blossoming at school.
The evidence of the Family Consultant was not impeached and I accept her evidence as being reliable.

Family report 2011

A family report was prepared in March 2011. It was read into evidence and was the subject of cross-examination of the Family Consultant in relation to the 2017 Family Report.
In 2011 the child had a good relationship with the father although she said that the father does ‘mean things’. This information seemed to have been garnered from the mother.

Paragraph 43 of that report sets out:-
[The child] told me that her father is "nice" and said that she misses her mother when she stays with her father especially during holidays when she stays with her father for longer periods of time. She told me that her mother "is a very nice Mum". [The child] told me that she thinks that her parents "hate each other'.'· She said that she this this because, "they never talk to each other and they are never nice to each other". [The child] said that she wishes that they could be nice to each other. She said, "My Dad does mean things to my Mum" and that her father does not want to talk to her mother. She said that her mother had told her this.
Paragraph 45 of that report sets out:-
When [the child] was observed with her father, they appeared to have an easy and relaxed communication and [the child] appeared to have a close physical relationship with him. She was observed with T earlier in the childcare room and they played happily together. They seemed to enjoy their interaction. When [the child] was observed with [the father’s wife], she was also seemed very relaxed. It was clear that [the child] feels very much a part of the family that [the father] and [the father’s wife] have created for her and her stepsiblings.

Paragraph 46 of that report sets out:-
When observed with her mother, [the child] also seemed very relaxed [the child] and her mother chatted in a very comfortable manner and they involved themselves in a joint drawing activity, which they both seemed to enjoy. [The mother] spoke positively about [the child’s] drawing and she made a comment to me about [the child] being "a bit of an artist" and mentioned that her uncle “[the father’s] brother is an artist".

Paragraph 49 of that report sets out:-
[The father], however, made it clear to me that he does not wish to communicate with [the mother] and he and his current wife hold an extremely negative view of [the mother]. [The father] believes that [the mother] has nothing positive to offer [the child] and that the care. That she provides for [the child] is likely to cause her psychological damage which will create great difficulty for her in the future. He, therefore, believes that [the child] should be removed from her mother's care and placed in his and his wife's care.
This is an indication of the conflict between the parties. The Family Consultant observed that the father’s wife has an extremely negative view of the mother and in relation to the father’s views she observed:-
53.[The father’s] totally negative view of [the mother] is extremely concerning. [The child] presents, as a fairly resilient child who has been able to maintain a positive relationship with both parents in spite of the difficulties that her parents have with each other. However, it is often very difficult for children to maintain relationships with both parents if the conflict between the parents is ongoing. As a child grows older, and especially as a child enters adolescence, a child often finds that the only way that they can escape the situation they find themselves in, is to align himself or herself with one parent against the other. It seems that [the father] would be pleased with an outcome, which resulted in [the child] aligning herself with him against her mother. This would not be her interests, especially in relation to. Her psychological health and social development. However, [the father] seems genuinely to believe that [the child] is at serious risk of severe psychologically harm if she remains living with her mother. Although, [the mother] might not provide [the child] with the best care possible, there is no evidence to suggest that living with her mother is likely to cause [the child] severe psychological harm. It is more likely that the ongoing conflict between her parents, to which both parents seem to be exposing her, is likely to cause her psychological harm.
The evidence contained in this earlier report is consistent with the events following that time. It is as if neither party read this, or indeed the later report. They continue with their conflict knowing that the child is the collateral damage and yet ignoring it.
I treat the evidence in the 2011 report as reliable.

THE LAW

The provisions of the Family Law Act 1975 (Cth) that deals with children is set out in Part VII in particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
The terminology of the section is thus that the court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)      the nature of the relationship of the child with:
(i)      each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii)      to spend time with the child; and
(iii)    to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)       either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)      the capacity of:
(i)      each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)      if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i)      the nature of the order;
(ii)      the circumstances in which the order was made;
(iii)    any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v)      any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)     any other fact or circumstance that the court thinks is relevant.
I will endeavour to apply the facts to the law.

CONSIDERATION OF S60CC FACTORS

I am required to consider the factors under s 60CC of the Act in determining these parenting issues. In considering these factors, I have had regard to all of the relevant evidence provided during the hearing and findings made by me.

Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child's parents;

There is a benefit to this child continuing her close and meaningful relationship with the mother. As to the father, he has intentionally absented himself and his family from the child’s life since late 2014.
If the father reaches out to the child I am satisfied that she is likely to spend time with him, provided she feels safe and not at risk of being detained in Queensland and isolated from the mother. In that circumstance the child would benefit in having a meaningful relationship with the father. Given the evidence from the Family Reports, I am concerned that if an order was made that the child live with the father or spend periods of time with him in Queensland it would be counterproductive and the child’s tenuous relationship with the father would be severed.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

The mother asserts that there is no risk to the child in terms of abuse, neglect and family violence in her care.
The father raises a number of issues. He says the mother has a history of family violence from 2004 and earlier. He sets this out in his affidavit and in his case outline. Yet in 2005 and 2011 he consented to orders that the child live with the mother. Since 2011 there is no cogent evidence of the child being at risk as to family violence in the care of the mother.
The father says that the mother suffers from serious psychiatric disorders such as would prevent her from caring for the child and cause her to expose the child to the risk of abuse or neglect. It was open for evidence to be obtained by a single expert as to the mother’s mental health, but no steps were taken. The child is managing adequately to well in the mother’s care.
In his evidence that father says the mother neglects the child and in doing so has exposed the child to the risk of being groomed for possible sexual gratification of a paedophile. This arises out of the child engaging on the internet with an older man. This was discovered and appropriate steps were taken to protect the child. The father declined to warn the mother, which in itself was unhelpful. I do not accept that the mother is neglectful as is asserted by the father.
The mother has not been assiduous in attending to the child’s medical needs as she ought to have been. She seems at times lethargic at least. As such some orders need to be made to convert her concerns into action. It may well be asked, rhetorically, this would have been addressed if the father was in the child’s life and in reasonable communication with the mother.
The child does not regularly attend school, and this has been a chronic problem over many years. Despite this she is doing well. This is a valid complaint which needs to be addressed. The only solution in the father’s case is a change of residence. I have had regard to this problem and its impact on the child in making this determination.

Section 60CC(3) Factors

Section 60CC(3) (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

The Family Consultant opined in the 2017 Family Report and I accept that:-
31. [The child] appeared to be somewhat conflicted when discussing her father. She appeared anxious and negative about the possibility of being in a room with him and about the prospect of seeing him at the Court during the assessment. Notwithstanding this, she was also able to identify some positives about him. At the beginning of the assessment, [the child] said that she does not want to see her father because she does not want to go to Brisbane, which she said she found tiring and added that she does not want to see him in either Brisbane or in Sydney. [The child] said that she does not know her father well and has not seen or heard from him for about two years.
…
45. [The child] presented as being very resistant to spending time with her father. She has not spent time with, nor communicated, with him for approximately two years and two months, which is a significant time for any young person. While stating that she does not want to see her father, she also appeared to be not entirely closed off to the idea of seeing him “if made to” do so, indicating that, if her parents could put practical, non-burdensome arrangements in place, at least for a few months, [the child] may be encouraged to re-commence spending time with her father. Significant obstacles to [the child] doing so may be the impact of [the mother’s] anxiety if it involved [the child] going to Queensland plus [the child’s] views that she does not want to travel to Queensland to spend time with her father.
46. Due to [the child’s] age and stage of development, and taking into account the geographic distance and cost of travel, [the child’s] stated reluctance would have to be given weight. While the writer has not spoken with [the father] and his wife and therefore does not know his current views, a possible more workable option might be [the child] spending time with her father in Sydney to get to know him again although it is noted that [the child] is far from enthusiastic about that option.
The child’s age and development are such that I have given these views significant weight.

Section 60CC(3)(b) The nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);

The child has a close relationship with the mother which is continuing and should continue. Relevantly, the Family Consultant observed:-[17]
35.[The child] described a close and warm relationship with her mother. She said that she enjoys being with her mother and that she is “nice and fun” to be with. [The child] believes that her mother prioritises her and tries to make her happy.
[17] January 2017 Family Report paragraph 35.
She had a close relationship with the father and his broader family, but that has been diminished given the father’s decision not to spend time, communicate or even send presents or cards to the child since late 2014. Added to this is the father’s fixed view that his time with the child must be with the broader family and not just him. The word ‘pig headed’ springs to mind in terms of his approach.

Section 60CC(3)(c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and
(iii) to communicate with the child;

The parent’s both treated the other with little respect or trust. However, the father was concerned about the child in terms of education and care. However, such was the conflict between the parties that the mother adopted a defensive non communication approach and the father became more demanding. Their poor communication is clear from the times the child was retained in Queensland, the mother’s failure to have the child at the airport to travel to visit the father (with the consequential additional cost in respect of airfares) and the father’s failure to tell the mother about the emails from older man she was communicating with on the internet. The father asserts that the mother was ‘alienating’ the child from him. On considering the 2011 family report I am not convinced that was the case, it seems to me more a matter of very poor and dysfunctional communication. In recent years the father has absented himself from the decision making for the child.
The father had reasonable time and communication with the child up to 2014. However, after late 2014 he took a decision not to interact with the child in any meaningful way. Given his distress about no contact and his telephone call to the mother’s mobile telephone shortly before the start of the hearing, his approach is perplexing and seems to have an element of ‘cutting of his nose to spite his face’.
That approach has confused the child and she struggled to understand his approach. The Family Reporter noted:-[18]
31.[The child] appeared to be somewhat conflicted when discussing her father. She appeared anxious and negative about the possibility of being in a room with him and about the prospect of seeing him at the Court during the assessment. Notwithstanding this, she was also able to identify some positives about him. At the beginning of the assessment, [the child] said that she does not want to see her father because she does not want to go to Brisbane, which she said she found tiring and added that she does not want to see him in either Brisbane or in Sydney. [The child] said that she does not know her father well and has not seen or heard from him for about two years.
[18] Ibid paragraph 31.
This history and the father’s lack of insight into the needs of the child to see him and hear from him, make the orders he seeks difficult.

Section 60CC(3)(ca) The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

The mother has been the sole financial provider for the child since at least November 2014.

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

I accept that the child suffers from anxiety and is not willing to move to Queensland to be in her father’s care. The father believes that the child would manage that change without serious difficulty. I do not agree, given the evidence, of the Family Consultant as to the child’s views.
I am satisfied that the child would oppose the move and it would be likely to exacerbate her anxiety.
The change would remove the child from the school which she enjoys attending and in which she seems settled.

Section 60CC(3)(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

The child has lived in Sydney in the primary care of the mother. The father proposes that the child live with him in Brisbane.
The mother receives Centrelink Benefit and I accept that she does not have the funds to meet travel expenses.
The father, his wife and the children in their care rely upon income of the father’s wife and some Government support. There is likely to be an improvement in the funding into the father’s household once he completes his study in about August this year. I accept that despite limited funds the father and his wife would fund and enable the child’s travel between Sydney and Brisbane.
Given the evidence of the father it seems unlikely that he will pursue time with the child other than in Queensland.
The child is unlikely to accept the move from her mother’s home and is likely to be resistant to efforts to force her to move to her father’s home.

Section 60CC(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

The mother has been the primary carer of the child throughout her life so far. The mother has struggled to arrange for the child to regularly attend school and has at times been passive in terms of treating the child’s health issues, such as tonsils, anxiety and the like. This does not seem to reach the level of neglect, and the child seems to be coping adequately to well at school. It is telling that when the child was enrolled in H School she was there from 29 January 2013 until 11 February 2013. The child’s classroom teacher and school principal observed:-[19]
Academically [the child] demonstrated well above age expectation in reading and writing, and above year level in expectations in mathematics … [The child] appeared to be happy and settled, and she quickly established a friendship network after enrolling. [The child’s] classroom teacher observed leadership qualities ending in [the child’s] interaction with her peers. [The child] was observed to be a cheerful and engaged learner during her time at our school.
[19] Affidavit of father’s wife sworn 2 March 2017 annexure G (page 90 of 127)
The father had, up to 2014, shown a capacity to care for the child in his household. The child clearly got on well with her sister, step siblings and the father’s wife. The father failed to return the child to the mother in 2013 and on another occasion delayed the return of the child. His approach in effectively preventing the child having telephone communication with the mother at least in 2013 and 2014, reflects badly on his capacity to care for the child.
His failure to spend time and communicate with the child from 2014 to date has undermined his relationship with the child.
The father does not have the capacity to provide for the child’s need to have a relationship with both he and the mother, or to comply with the orders of the Court. He failed to return the child to the mother following a period of spend time she spend with him in 2013; when he enrolled her in a Brisbane based school. When the Court ordered that the child return to the mother he told the Court that he did not intend to facilitate the spend time with order during the interim period.
I accept the assessment of the Family Consultant when she said:-[20]
44.There have been many serious concerns raised in the history of this matter. These include allegations about [the mother’s] excessive use of alcohol and her reported and alleged vulnerable mental health history. The latter may well be related to [the mother’s] emotionally difficult early history. Despite there having been concerns about [the mother’s] care of [the child], as identified in early subpoenaed material from FACS regarding [the mother’s] use of alcohol at the time, she appears well able to provide care for [the child] and has done so for all of [the child’s] life. In addition, to her mother’s credit, [the child] is attending a reportedly excellent public girls high school, had almost completed Year 7 at the time of interviews and appears to be a well-loved child.
[20] January 2017 Family report paragraph 44.
There is no current evidence of the mother abusing alcohol. I have commented earlier on the evidence, or lack of it, in terms of the mother’s mental health.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

This factor was not the subject of submissions.

Section 60CC(3)(h)Section 60CC(3)(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;

This factor was not the subject of submissions.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

With this factor I re-iterate that which I have said earlier in these reasons. The mother has a strong positive approach and attitude to the responsibilities of parenthood, albeit with the concerns which I have articulated elsewhere in these reasons.
The father wants a relationship with the child, but has abandoned contact and communication with her over the recent years.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;

The father and his wife asserted violence from many years ago and prior to a number of consent orders. In the circumstances of these parties at this time it is not a relevant consideration.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;

There are no recent or relevant Family Violence orders.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

Given what I have said earlier in the context of the ongoing conflict between these parents and their ultra-sensitivity to the faults of the other parent and the lack of insight into the role that that parent takes, I despair that there is not much this court or any Court can do to stop the conflict.
The parties have not resolved their dislike, distrust and disrespect of each other and despite over eight years of litigation they have not been able to work together for the sake of this child. That is not likely to change.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;

I have considered of the facts as they apply to the relevant factors both specifically and generally in terms of the determination I have made.

CONCLUSION
Generally

I do not find that the child is at unacceptable risk of abuse in the care of the mother, including as a result of her social media contacts in late 2013 early 2014.
As to the mother and doctor shopping I have put in place orders to ensure that the child’s health needs are met and I will provide for the father to have access to those records if he has concerns.
The mother’s care of the child has not been optimal but in all of the circumstances it is likely to be better for the child than a move from her primary carer at this age and stage of life.
The father had not seen the child for about two and a half years, that being a decision of the father. I do not accept that the mother has alienated the child from the father.

Residence

Where the child resides is the pivotal issue to be determined as questions such as parental responsibly, time and communication follow from that determination of residence.
Given all of the facts, factors and circumstance which I have discussed elsewhere in these reasons, I have determined that it is in the overall best interest of the child to remain in the primary care of the mother.

Parental Responsibility

These parents could not agree on the time of day.
As I have said (probably numerously) these parents do not like or respect each other. They are unwilling to communicate and I find they are unable to communicate. To make an order for any form of shared communication would be sentencing them to failure and no doubt bring them back to Court. The decision making for the child would not take place except in breach of any shared parental responsibility order.
The mother suffers from anxiety and feels bullied by the father and the father’s wife, they in turn do not respect the mother and believe their approach to parenting is superior to that offered by the mother.
The Family Consultant recommends that:-[21]
49.That the parent with whom [the child] lives hold sole parental responsibility and be obligated to provide regular information about [the child] to the other parent.
[21] Ibid paragraph 49.
I accept and adopt both parts of that recommendation

Communication

Given the views of the child I will not make specific orders for communication. I will leave that to the child. However, I will put in place a structure so that the child can contact the father and his family and receive cards, letters and the like from them. This approach accords with the recommendations of the Independent Children's Lawyer.

Time

The mother and the Independent Children's Lawyer sought orders that the child spend time with the father ‘as may be agreed between the parties but subject to the child’s wishes’.[22]
[22] Exhibit ICL 7.
Given the history of this matter and the previous good relationship between the child and the father and his family I was concerned that such an approach would lead to the child having no time with the father.
The father was dogged in his views that if he sees the child it should be with his family and in Queensland. He visited Sydney once over the last two years and did not try to see the child. I do not accept his explanation.
I will put in place an opportunity for the child to meet with the father over the next two holiday periods. This will impose an obligation on the father to agree before arrangements are put in place. I urge the father to take that time, alone, and see if he can build a bridge back to his daughter. Given her age and maturity I believe that it would lead to a resumption of a meaningful relationship.
Given all of these circumstances I will make the orders as set out at the commencement of these reasons.

I certify that the preceding two hundred and thirty six (236) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 30 May 2017.

Associate: G Doyle

Date: 30 May 2017

[2017] FamCA 367

30 May 2017

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